Tempering the Commerce Power - The Scholarly Forum @ Montana

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Montana Law Review
Volume 68
Issue 1 Winter 2007
Article 5
1-2007
Tempering the Commerce Power
Robert G. Natelson
University of Montana School of Law
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Robert G. Natelson, Tempering the Commerce Power, 68 Mont. L. Rev. 95 (2007).
Available at: http://scholarship.law.umt.edu/mlr/vol68/iss1/5
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Natelson: Tempering the Commerce Power
TEMPERING THE COMMERCE POWER
Robert G. Natelson*
ABSTRACT
The Supreme Court's modem interpretation of the Necessary and Proper
Clause in the realm of interstate commerce is textually problematic,
unfaithful to the Constitution's original meaning, and contains positive
incentives for Congress to over-regulate. The Necessary and Proper
Clause was intended to embody the common law doctrine of principals and
incidents, and the Court should employ that doctrine as its interpretive
benchmark. The common law doctrine contains less, although some, bias
toward over-regulation, and it is flexible enough to adapt to changing
social conditions. Adherence to the common law doctrine would markedly
improve Commerce Power jurisprudence and reduce incentives for
harmful congressional behavior.
In a future case, we ought to temper our Commerce Clause jurisprudence in a manner that both makes sense of our more recent case law
and is more faithful to the original understandingof that Clause.
1
-Justice Clarence Thomas
CONTENTS
I.
II.
III.
IV.
V.
INTRODUCTION: THE TALE OF THE OVERLY AMBITIOUS
A GENT ...............................................
CONGRESS AS ATTORNEY IN FACT .....................
THE FOUNDERS' LAW OF PRINCIPALS AND INCIDENTS..
EARLY AMERICAN CONSTRUCTION OF THE NECESSARY
AND PROPER CLAUSE COMPLIED WITH THE COMMON
LAW DOCTRINE OF PRINCIPALS AND INCIDENTS ........
110
SIMILARITY OF MODERN LAW-OUTSIDE THE
COMMERCE POWER ...................................
VI.
97
98
102
THE MODERN COMMERCE POWER TEST ...............
113
115
* Professor of Law, The University of Montana School of Law. I am grateful for the assistance
of the following people: The staff and administration of the Bodleian Law Library, University of Oxford; Dr. Norma Aubertin-Potter, chief librarian of the Codrington Library at All Souls College, University of Oxford; Dr. Vanessa Hayward, Keeper of the Middle Temple Library, London, and her staff;
Professor Scott J. Burnham, The University of Montana School of Law; Professor Stacey Gordon, reference librarian, as well as the staff generally, at the Jameson Law Library, The University of Montana
School of Law; Charlotte Wilmerton, The University of Montana School of Law, for her secretarial
assistance; Sarah Morath, Class of 2007, The University of Montana School of Law Class of 2007, for
research assistance; and my wife, Elizabeth J. Natelson, for everything else. All translations in this
Article from Latin are mine.
1. U.S. v. Lopez, 514 U.S. 549, 584 (1995).
Published by The Scholarly Forum @ Montana Law, 2007
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Montana Law Review, Vol. 68 [2007], Iss. 1, Art. 5
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A. The Nature of the Test ...........................
B. Problems with the "SubstantialEffects" Test .....
1. Infidelity to OriginalMeaning ...............
2. Other JurisprudentialShortcomings .........
3. PracticalShortcomings ......................
a. Lack of Any Connection between
Legislation and Need .....................
b. Lack of Connection between Means and
PurportedPurpose .......................
c. The Aggregation Principle................
VII. A RETURN
TO BASIC "PRINCIPALS"-AND INCIDENTS...
VIII. CONCLUSION 2
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
115
117
117
118
119
119
121
124
125
127
2. BibliographicalNote: This footnote collects alphabetically the secondary sources
cited more than once in this Article. The sources used are as follows:
2 Annals of Cong. (1789) (available at http://memory.loc.gov/ammem/amlawlwac.html).
William Blackstone, Commentaries vol. 1-2.
Thomas Blount, A Law-Dictionary and Glossary (3d ed., Nutt & Gosling 1717).
M. St. Clair Clarke & D.A. Hall, Legislative and Documentary History of the Bank of the
United States (Augustus M. Kelly 1967) (originally published 1832) [hereinafter Bank
History].
Edward Coke, The First Partof the Institutes of the Laws of England vol. 1-2 (13th ed., T.
Wright 1788) (originally published 1628).
John Comyns, A Digest of the Laws of England vol. 1 (Strahan & Woodfall 1780).
John Cowell (or "Cowel"), A Law Dictionary: Or the Interpreterof Words and Terms Used
either in the Common or Statute Laws of Great Britain and in Tenures and Jocular
Customs (Nutt & Gosling 1727).
Timothy Cunningham, A New and Complete Law Dictionary,or, GeneralAbridgment of the
Law vol. 1 (3d ed., 1783).
Knightley D'Anvers, A General Abridgment of the Common Law vol. 1 (2d ed., Nutt &
Gosling 1725).
John Dickinson, Letters from a Farmer in Pennsylvania, in Empire and Nation 3 (Forrest
McDonald ed., 2d ed., Liberty Fund 1999) (originally published 1767).
Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the
Federal Constitution vol. 1-5 (2d ed., J.B. Lippincott Co. 1836) [hereinafter Elliot's
Debates].
E. Allan Farnsworth, Contractsvol. 1-3 (3d ed., Aspen Publishers 2004).
Alexander Hamilton, John Jay & James Madison, The Federalist (George W. Carey &
James McClellan eds., Liberty Fund 2001) (available at http'//oll.libertyfund.org:81/
EBooksfHamilton_0084.pdf) [hereinafter The Federalist].
Giles Jacob, A New Law-Dictionary (8th ed., Woodfall & Strahan 1762).
John Marshall'sDefense of McCulloch v. Maryland (Gerald Gunther ed., Stanford U. Press
1969) [hereinafter Marshall, Defense].
Robert G. Natelson, The Agency Law Origins of the Necessary and Proper Clause, 55 Case
W. Res. L. Rev. 243 (2004) [hereinafter Natelson, Necessary and Proper].
Robert G. Natelson, The Constitution and the Public Trust, 52 Buff. L. Rev. 1077 (2004)
[hereinafter Natelson, Public Trust].
Robert G. Natelson, The Legal Meaning of "Commerce" in the Commerce Clause, 80 St.
John's L. Rev. 789 (2006) [hereinafter Natelson, Commerce].
William Rastall, Les Termes de la Ley (H. Lintot 1742).
The Student's Law-Dictionary (Nutt & Gosling 1740).
Charles Viner, A GeneralAbridgment of Law and Equity vol. 1-23 (George Strahan 1742).
http://scholarship.law.umt.edu/mlr/vol68/iss1/5
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I.
INTRODUCTION:
THE
TALE OF THE OVERLY AMBITIOUS AGENT
After many years of hard work, John and Jane have built up a
prosperous and lucrative ranching operation in Montana.3 They
decide to travel abroad for several years. They hire John's
mother's younger brother Sam to manage the ranch in their absence.
When they return, they find the business running a negative
cash flow, deeply in debt, and badly in need of maintenance and
capital improvement. Sam has bled money from the ranch and
used the cash to buy a farm machinery dealership and several local retail businesses, including a drug store, a grocery, a hardware
store, a clothier, and an office supply store. Sam has no particular
aptitude for running those businesses, and he is operating none of
them well. Some of them are lurching toward bankruptcy. Still,
he has become a popular figure around town because his control of
so many mercantile enterprises has enabled him to bestow product discounts and other benefits on favored people-at John and
Jane's expense.
Upset at the danger to their hard-won earnings, John and
Jane confront Sam: "Whatever gave you the idea you had authority to buy all these other businesses?" they demand.
"That's easy," smiles Sam. "Look at my power of attorney. It
grants me authority 'to regulate the ranch and to exercise incidental powers necessary and proper for that purpose.' "
"What," retorts Jane, "has a big farm machinery dealership
got to do with running our ranch?"
"Look," says Sam, "we sometimes buy machinery and parts
for machinery. Don't you see that the dealership has a substantial
effect on the ranch?"
John counters, "Okay, what 'substantial effect' is there on our
business from a drug store, a grocery, a hardware store, and all
those other white elephants you've acquired-other than that they
are sucking us dry?"
Sam looks sullen: "Well, individually, not much. But we do
some trade with all of them, and all of them together-well, that's
a big impact. Are you saying that as a ranch manager I have to
just keep my eyes on the manure and never look up to see what
3. As Montanans know, the phrase "prosperous and lucrative ranching operation" borders on the oxymoronic. However, the story in the text is only a parable.
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might be happening around us and what effect it might have on
the ranch?"
Jane turns to John, teeth clenched: "We ought to sue him,"
she says.
"Can't do that," Sam interjects. "Supreme Court says so. I've
got 'managerial discretion.' All you can do is refuse to renew my
contract. But I warn you: that wouldn't be a real popular move
around here right now."
II.
CONGRESS As ATTORNEY IN FACT
A modern judge or law professor might be able to rationalize
why this tale of abuse of fiduciary duty does not describe current
federal practice under the Constitution's Commerce Power. But to
the Constitution's framers or ratifiers, the analogy would seem
right on target. Most of them had spent time in the private practice of law, and they knew how agency agreements and other fiduciary arrangements worked in practice. 4 They believed in a fiduciary model of government,5 and they consciously modeled the Constitution's delegated powers on the language of powers of attorney
and other agency documents. 6 Indeed, James Iredell-federalist
leader at the North Carolina ratifying convention and future Supreme Court justice-explicitly described the Constitution as
a great power of attorney, under which no power can be exercised
but what is expressly [sic] 7 given. Did any man ever hear.., that
the attorney should not exercise more power than was there given
him? Suppose, for instance, a man had lands in the counties of Anson and Caswell, and he should give another a power of attorney to
sell his lands in Anson, would the other have any authority to sell
the lands in Caswell?-or could he, without absurdity, say, " 'Tis
true you have not expressly authorized me to sell the lands in Caswell; but as you had lands there, and did not say I should not, I
8
thought I might as well sell those lands as the other."
The "great power of attorney" granted Congress both express
and implied power to regulate commerce. The express grant was
4. The discussion in this section relies in part on my previous work. Natelson, Necessary and Proper, supra n. 2, at 270-71 (describing the professional backgrounds of members of the Constitutional Convention's Committee of Detail).
5. Natelson, Public Trust, supra n. 2 (describing in detail the Founders' commitment
to fiduciary government).
6. See generally Natelson, Necessary and Proper,supra n. 2 (discussing in detail the
background of the Necessary and Proper Clause).
7. Iredell at this point was either misreported or had forgotten the implied powers
under the Necessary and Proper Clause, but this is not relevant to his main point.
8. Elliot's Debates, supra n. 2, at vol. 4, 148-49.
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the Commerce Clause. 9 Some scholars have insisted that this provision was intended to confer capacity to govern a very broad
scope of economic, or even non-economic, activities, because in
Founding-era usage the word "commerce" sometimes had a very
wide meaning. 10 In fact, however, the evidence is overwhelming
that the intended meaning of "commerce" in the express grant was
rather narrow. It embraced no more than the buying and selling
of goods and services and certain related activities, such as navigation, commercial paper, insurance, money, and finance-essentially the body of jurisprudence called the law merchant or lex
mercatoria.1 1
The Constitution supplemented the express grant of power
over commerce with an apparent grant of authority to make laws
"necessary and proper" to carry the express powers into execution. 12 Wording of this kind was prevalent in eighteenth-century
powers of attorney and other documents bestowing powers on fiduciaries.' 3 The purpose of the language was to communicate to
9. U.S. Const. art. I, § 8, cl. 3 (Congress shall have power "[tlo regulate Commerce...
among the several States.").
10. The argument for a wide constitutional meaning of "commerce" was first set forth
in Walton H. Hamilton & Douglass Adair, The Power to Govern: The Constitution-Then
and Now (W.W. Norton & Co. 1937) (arguing that "commerce" included the entire economy). See also William Winslow Crosskey, Politics and the Constitution in the History of
the United States vol. 1, 69, 109 (U. of Chi. Press 1953) (elaborating the same argument);
Grant S. Nelson & Robert J. Pushaw, Jr., Rethinking the Commerce Clause: Applying First
Principles to Uphold FederalCommercial Regulations but Preserve State Control over Social Issues, 85 Iowa L. Rev. 1 (1999) (adopting the same argument); Robert J. Pushaw, Jr.
& Grant S. Nelson, A Critique of the Narrow Interpretationof the Commerce Clause, 96 Nw.
U. L. Rev. 695 (2002) (adopting the same argument); Robert J. Pushaw, Jr., Methods of
Interpretingthe Commerce Clause: A Comparative Analysis, 55 Ark. L. Rev. 1185 (2003)
(adopting the same argument); Akhil Reed Amar, America's Constitution: A Biography
107-08 (Random House 2005) (claiming that "commerce" included even non-economic activities).
11. The evidence for the legal meaning of"commerce" at the time is examined in Natelson, Commerce, supra n. 2 (surveying all appearances of "commerce" in reported English
cases of the sixteenth, seventeenth, and eighteenth centuries, and in various secondary
sources, and finding that it almost always meant "mercantile activities" only).
The evidence for the lay meaning of "commerce" is collected in Randy E. Barnett, The
OriginalMeaning of the Commerce Clause, 68 U. Chi. L. Rev. 101 (2001) (examining the
use of the word in the debates over the Constitution) and Randy E. Barnett, New Evidence
of the OriginalMeaning of the Commerce Clause, 55 Ark. L. Rev. 847 (2003) (examining use
of the word in the popular press).
12. U.S. Const. art. I, § 8, cl. 18 (Congress shall have power "[t]o make all Laws which
shall be necessary and proper for carrying into Execution the foregoing Powers, and all
other Powers vested by this Constitution in the Government of the United States, or in any
Department or Officer thereof.").
13. Natelson, Necessary and Proper,supra n. 2, at 274-76 (setting forth numerous illustrations). Since the publication of that article, I have identified many other examples.
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the reader the existence of implied powers incidental to the principal powers listed expressly in the instrument. In the words of Edward Coke, such language was "to declare and express to laymen
which [sic] have no knowledge of the law, what the law requires in
such cases." 14 The substantive effect of such clauses, however,
was nil. As Coke and others stated it, "expressioeorum quae tacite
insunt nihil operatur"'5-"the expression of those things that are
silently inherent has no legal effect." Unless incidental authority
was excluded explicitly (as in the Articles of Confederation),1 6 a
E.g. MacKreth v. Fox (H.L. 1791) 4 Bro. P.C. 258, 267, 2 Eng. Rep. 175, 181 (summarizing a
private trust deed with similar language); Charles Nalson Cole, A Collection of Laws 434
(Woodfall & Strahan 1761) (setting forth a statute granting commissioners of works "necessary or proper" powers); An Act for Dividing and Inclosing Several Common Fields and
Grounds within the Manor of Fillingham, in the County of Lincoln 4 (granting commissioners "necessary or proper" powers) (London 1759); An Act for Dividing and Inclosing the
Open and Common Field, Common Meadows, Common Pastures, Common Grounds, and
Commonable Lands, with the Hamlet and Liberties of Princethorp in the Township and
Parish of Stretton upon Dunsmore, in the County of Warwick 20 (London 1762) (granting
"convenient or necessary" powers) (on file with the author); Statutes at Large from the Fifth
Year of the Reign of King George the Third to the Tenth Year of the Reign of King George the
Third, Inclusive vol. 10, 16 (Strahan & Woodfall 1771) (granting commissioners the power
to make "proper" installations as they may deem "necessary").
In addition, orders from the House of Lords to lower courts frequently contained "necessary and proper" language. E.g. John Earl of Buckingham v. Drury (H.L. 1762) 3 Bro.
P.C. 492, 505, 1 Eng. Rep. 1454, 1462 ("[Ajnd that the said court do give all necessary and
proper directions for carrying this judgment into execution."); West v. Erisey (H.L. 1727) 1
Bro. P.C. 225, 233, 1 Eng. Rep. 530, 536 ("[Alnd the Court of Exchequer was to give all
necessary and proper directions for the making this judgment effectual.").
14. Boroughe's Case (K.B. 1596) 4 Co. Rep. 72b, 73b, 76 Eng. Rep. 1043, 1044-45 (reporter's commentary).
The 3d point (the great doubt of the case) which was resolved was, that in this case
the patentee ought to demand the rent upon the land; and their principal reason
was grounded upon a rule in law, sc. that the expression of a clause which the law
implies, works nothing, expressio eorum quae tacite insunt nihil operatur et expressa non prosunt qu-e non expressa proderunt [the expression of those things
that are silently inherent has no legal effect and the expressions produce nothing
that wouldn't have been produced without them]: and yet, as Littleton saith, it is
well done to put in such clauses to declare and express to laymen which have no
knowledge of the law, what the law requires in such cases ....
Id. (citations omitted). See also Shelley's Case (C.P. 1581) 1 Co. Rep. 93b, 104b, 76 Eng.
Rep. 206, 235 (expressing similar sentiments).
15. Boroughe's Case, 4 Co. Rep. at 72b, 76 Eng. Rep. at 1044 (reporter's commentary).
See e.g. Case of Mines (Exch. 1568) 1 P1. Com. 310, 317, 75 Eng. Rep. 472, 483 (stating that
the King had incidental power to dig gold and silver ore he owned and "the clause of licence
is but matter of curtesy, and serves only to give notice to the possessor of the soil, and is not
of necessity to be had"); The King v. Mayor of Durham (KB. 1757) 1 Keny. 512, 523, 96
Eng. Rep. 1074, 1078 (reporting counsel as agreeing that "corporations have an incidental
power of making by-laws" and "where a charter gives a general power, it is superfluous").
16. Art. of Confederation art. II (1781) ("Each state retains its sovereignty, freedom,
and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.") (emphasis added).
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naked grant of express authority passed incidental authority just
as well. 17 In sum, "necessary and proper" language of this sort
served as a rule of construction, and no more.
The role of the Necessary and Proper Clause in the Constitution was to be the same as the role of similar language in other
agency documents. We know this from the surviving records of
the federal convention's Committee of Detail,18 which drafted the
Clause, and from separate comments by committee member Edmund Randolph. 19 We know it also from the debate over ratification. Advocates of the Constitution used much ink and air expounding to the ratifying public the merely informative role of the
Necessary and Proper Clause. 20 For example, Iredell's colleague
and ally, Archibald Maclaine, explained the clause to his fellow
North Carolinians this way: "This clause specifies that they shall
make laws to carry into execution all the powers vested by this
Constitution; consequently, they can make no laws to execute any
other power. This clause gives no new power, but declares that
21
those already given are to be executed by proper laws."
Thirty-three years later, Virginia judge Spencer Roane, sonin-law of arch-antifederalist Patrick Henry, pseudonymously attacked Chief Justice John Marshall's construction of the Necessary and Proper Clause in McCulloch v. Maryland.22 One of
Roane's central arguments was that the Clause, correctly understood, was merely a rule of construction that added no power to
17. Natelson, Necessary and Proper,supra n. 2, at 283-84.
18. Edmund Randolph wrote the first draft of the Clause, which addressed potential
conflicts between state and federal powers thus: "All laws of a particular state, repugnant
hereto, shall be void, and in the decision thereon, which shall be vested in the supreme
judiciary, all incidents without which the general principles [sic] cannot be satisfied shall
be considered, as involved in the general principle [sic]." The Records of the FederalConvention of 1787 vol. 2, 144 (Max Farrand ed., Oxford U. Press 1937). John Rutledge then
revised this draft. Either Rutledge or Randolph lined out the original wording, and Rutledge replaced it with the phrase: "and a right to make all Laws necessary to carry the
foregoing Powers into Execu[tion]." Id.
19. Edmund Randolph, Opinion on the Constitutionalityof the National Bank, in Bank
History, supra n. 2, at 89 (stating that "[tlo be necessary is to be incidental, or, in other
words, may be denominated the natural means of executing a power"). Moreover, this role
of the Necessary and Proper Clause was assumed in the First Congress during the debate
over the proposed Bank of the United States. See infra nn. 84-89 and accompanying text.
20. See Natelson, Necessary and Proper, supra n. 2, at 296-314.
21. Elliot's Debates, supra n. 2, at vol. 4, 141. See also id. at 468 (reporting James
Wilson's remarks at the Pennsylvania ratifying convention); id. at 537 (reporting Thomas
M'Kean's similar remarks at the same convention); The Federalist,supra n. 2, at No. 33,
158 (Alexander Hamilton); id. at No. 44, 234-35 (James Madison). There are other examples.
22. McCulloch v. Md., 17 U.S. 316, 359, 365 (1819).
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the federal store.23 John Marshall-who must himself be accounted a leading Founder, for he had been a principal federalist
spokesman at the Virginia ratifying convention-pseudonymously
responded with newspaper articles in defense of McCulloch. He
did not find much to agree with Roane about. But he did concur
wholeheartedly with Roane's argument that the Necessary and
Proper Clause had no independent legal effect-that it simply memorialized the pre-existing doctrine that incidental powers fol24
lowed principal ones.
Thus, the constitutional design pertaining to the Commerce
Power was this: Congress would have authority over the law
merchant or lex mercatoria. Congress also would possess certain
incidental powers connected to that authority. But no more.
III.
THE
FOUNDERS' LAw OF PRINCIPALS AND INCIDENTS
What was the scope of those incidental powers? To answer
this, we turn to the common law 25 of the time, for as Marshall
pointed out, the Necessary and Proper Clause, like the rest of the
Constitution, was to be read by the light of the common law. 26 We
can recover that common law from several kinds of sources. The
most important are the reports of cases decided before the Consti-
tution was ratified. These are now available in approximately
fifty volumes of English Reports, Full Reprint.27 (One must keep
23. Marshall, Defense, supra n. 2, at 115, 117, 124-25 (stating that the Clause gives
Congress no additional power).
24. Id. at 97, 176, 186. The editor of this exchange, the late Professor Gerald Gunther
of Harvard, was moved to comment, "Clearly these essays give cause to be more guarded in
invoking McCulloch to support views of congressional power now thought necessary." Id.
at 20. This understanding of the Necessary and Proper Clause as a pure rule of construction was confirmed by Justice Joseph Story, Marshall's right-hand man on the Court:
The plain import of the clause is, that congress shall have all the incidental
and instrumental powers, necessary and proper to carry into execution all the express powers. It neither enlarges any power specifically granted; nor is it a grant
of any new power to congress. But it is merely a declaration for the removal of all
uncertainty, that the means of carrying into execution those, otherwise granted,
are included in the grant.
Joseph Story, Commentaries on the Constitution of the United States vol. 3, § 1238 (Hilliard, Gray & Co. 1833) (available at http://www.constitution.org/js/js-000.htm).
25. Here and throughout, I use the term "common law" in a broad sense to refer to
English case law, even if decided in the Chancery, Exchequer, or Consistory Courts or in
the House of Lords.
26. Marshall, Defense, supra n. 2, at 167-77 (interpreting the Necessary and Proper
Clause according to the common law of principals and incidents).
27. These are English Reports, FullReprint, volumes 1-3, 21-29, 72-100, 123-25, 145,
161, 167, 168, 170, together with a few cases in volume 36. These volumes include a small
number of later cases, although this Article cites only three-decided in 1791, 1793, and
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in mind, however, that some case reporters 2 8-such as William
Salkeld, 2 9 Edward Coke, 30 and Edmund Plowden 3 1-were more
highly regarded than others. 3 2) In addition to the cases, there was
a variety of eighteenth-century secondary sources. 33 These included treatises by scholars such as Lord Coke 34 and William
1797. See supran. 13 and infra n. 48, n. 61. There may be minor spillage ofpre-ratification
cases into other volumes, but the numbers are not significant.
28. See generally John William Wallace, The Reporters Arranged and Characterized
with Incidental Remarks (4th ed., Soule & Bugbee 1882) (discussing the biographies, methodology, and relative reputations of the various English case reporters).
29. W.R. Williams, Salkeld, William (1671-1715), Oxford Dictionary of Natl. Biography, http://www.oxfordnb.com/ (2004-2005) (containing a short biography).
30. Allen D. Boyer, Coke, Sir Edward (1552-1634), Oxford Dictionaryof Natl. Biography, http://www.oxfordnb.com/ (2004-2005) (containing a short biography).
31. Christopher W. Brooks, Plowden, Edmund (c. 1518-1585), Oxford Dictionary of
Natl. Biography, http://www.oxfordnb.com/ (2004-2005) (containing a short biography).
32. In the course of writing from London to his parents, the young John Dickinson,
then a law student, offered insight into some of the authors then deemed important. H.
Trevor Colbourn & John J. Appel, A Pennsylvania Farmerat the Court of King George:
John Dickinson's London Letters, 1754-1756 Part 1, 86 Pa. Mag. of History & Biography
241, 241 (1962); H. Trevor Colbourn & John J. Appel, A PennsylvaniaFarmerat the Court
of King George:John Dickinson's London Letters, 1754-1756 Part11, 86 Pa. Mag. of History
& Biography 417, 417 (1962) (setting forth the content of Dickinson's letters from London
to his parents). Dickinson's references are to: Coke, id. at 257, 422, 451; Plowden, id. at
257, 423, 451; Salkeld, id. at 451; and Peyton Ventris, id. at 451. He also mentions Littleton, id. at 423, probably referring to Coke's commentary on Littleton (i.e., Coke, supra n.
2).
33. In my view, modern constitutional commentary tends unjustifiably to overlook
much of this material. For example, as of October 7, 2006, there were only fifty articles in
the entire Westlaw "journals and law reviews" (JLR) database referencing any works in
Giles Jacob's copious bibliography. Only some of these articles were on constitutional law
topics. Such citations as were found were exclusively to Jacob's law dictionary, Jacob,
supra n. 2, rather than to his many other works. At least Jacob fared better than his competitor Thomas Blount, whose dictionary, Blount, supra n. 2, garnered only fifteen citations
in the same database. The query "Edmund Plowden'-an author the founding generation
considered in the same general rank as Coke and Blackstone-produced only thirty-four
entries. Even more sparse were citations to Knightly D'Anvers's popular (although incomplete) Abridgment, D'Anvers, supra n. 2. There were only two-both by me. The most
astonishing statistic is that Charles Viner's Abridgment, Viner, supra n. 2,-the most extensive of his day-was cited in only thirty-eight articles. (I was responsible for two of
those.)
On the other hand, scholars often have cited Coke and probably have over-relied on
Blackstone. The query "'Edward Coke'/s Institutes" produced 514 documents and " 'William Blackstone'/s commentaries" produced 4,844.
34. Coke, supra n. 2.
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Blackstone, 3 5 legal dictionaries, 36 and legal digests or, as they
37
usually were called, "abridgments."
These sources show that the doctrine of principals and incidents was a well established, pervasive, and widely employed
branch of the law. The doctrine was by no means limited to principal and incidental powers-for example, fealty 38 and rent 39 were
incidents to reversions-but principal and incidental powers did
comprise an important, if not the predominant, branch of the overall doctrine. We find that the power of disposal was an incident to
a fee simple4 0 and to ownership of personal property. 4 1 The power
to fish with nets was incidental to a grant of the fish.4 2 Ownership
of growing trees by one who did not own the ground included as
43
incidents both the power to show the trees to a prospective buyer
and the power to cut them.4 4 The ownership of a mineral carried
an implied power to dig for it. 4 5 Authority to manage an estate
included power to make short-term leases-but not to convey a
35. Wilfrid Prest, Blackstone, Sir William (1723-1780), Oxford Dictionaryof Natl. Biography, http://www.oxfordnb.com/ (2004-2005) (containing a short biography).
36. Blount, supra n. 2; Cowell, supra n. 2; Cunningham, supra n. 2; Jacob, supra n. 2;
Rastall, supra n. 2; Student's Law-Dictionary, supra n. 2.
37. Matthew Bacon ("A Gentleman of the Middle Temple"), A New Abridgment of the
Law (Nutt & Gosling 1736); Comyns, supra n. 2; D'Anvers, supra n. 2; William Nelson, An
Abridgment of the Common Law (Strahan & Woodfall 1725); Viner, supra n. 2.
38. Coke, supra n. 2, at vol. 1, 93a.; Blackstone, supra n. 2, at vol. 2, *33.
39. Blackstone, supra n. 2, at vol. 2, *33. See also Smith v. Stapleton (K.B. 1568) 2 P1.
Com. 426, 432-33, 75 Eng. Rep. 642, 650-51 (holding that rent is incident to a reversion);
Casus Incerti Temporis (K.B. n.d.) Keil. 102, 108-09, 72 Eng. Rep. 266, 274 (holding the
same); Read v. Lawnse (K.B. 1661) 2 Dy. 212b, 212b, 73 Eng. Rep. 469, 470 (holding that a
rent was not extinguished because it was incident to the reversion, which had revived).
40. Hungerford v. Wintor (Ch. 1735) Amb. 839, 841, 27 Eng. Rep. 525, 526 (stating "a
power of disposal is incident to a fee-simple").
41. Fettiplace v. Gorges (Ch. 1789) 3 Bro. C.C. 8, 10, 29 Eng. Rep. 374, 375 (holding that
the jus disponendi-rightof disposal-is an incident of personal property).
42. Randal v. Harvey (K.B. 1623) Godb. 358, 358, 78 Eng. Rep. 211, 211 (referring to
incidental conveyance of right to use nets when conveying all fish in a pond).
43. Liford's Case (K.B. 1614) 11 Co. Rep. 46b, 52a, 77 Eng. Rep. 1206, 1217.
44. Stukeley v. Butler (K.B. 1615) Hob. 168, 173, 80 Eng. Rep. 316, 320 (holding, "by the
grant of the trees by a tenant in fee-simple, they are absolutely passed away from the
grantor, and his heirs, and vested in the grantee, and go to the executors or administrators,
being in understanding of law, divided as chattels from the free-hold: and the grantee hath
power incident and implied to the grant to fell them when he will, without any other special
license"); followed in Ryall v. Rolle (Ch. 1749) 1 Atk. 165, 176, 26 Eng. Rep. 107, 114. See
also Coke, supra n. 2, at vol. 1, 55b-56a (citing the rule that the owner of corn has incidental power to cut it when the land is in possession of another).
45. Case of Mines (Exch. 1568) 1 P1. Com. 310, 317, 75 Eng. Rep. 472, 483 (holding that
the ore of gold and silver is the King's and that "the power of digging is incident to the thing
itself').
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fee. 46 Designation as "trustees, to preserve contingent remain-
ders" encompassed the grant of corresponding powers. 47 Authority to make war implied the power to make treaties. 48 Ownership
of a manor implied the power to hold court. 49 A corporation had
implied incidental power to make by-laws, 5051and to remove corporate officers who had failed in their duties.
If one had the power to dispose of the principal, one had the
power to dispose of the incident. 52 In a grant of the principal, the
incident passed even if the grant contained no express reference to
it. 53
If the grant did refer to the incident, then, as noted above,5 4
the words of reference did not have independent legal effect: ex55
pressio eorum quce tacite insunt nihil operatur.
The legal dictionaries of the time did not define "principal,"
but their definitions of "incident" were remarkably uniform. The
46. Viner, supra n. 2, at vol. 3, 538-40 (listing powers within and without the implied
authority of the bailiff of a manor).
47. Thong v. Bedford (Ch. 1783) 1 Bro. C.C. 313, 313-14, 28 Eng. Rep. 1154, 1154. A
trustee to preserve contingent remainders was the grantee of a vested remainder for the
life of a previous life tenant and preceding a contingent remainder. Thus, in the conveyance "to A for life, then to B for A's life, then to C and his heirs if C should survive A," B is
the trustee to preserve contingent remainders. The purpose of B's interest is to prevent C's
interest from being destroyed (pursuant to the doctrine of the destructibility of contingent
remainders) if A should forfeit his interest while still alive. If A should forfeit, B's vested
remainder would immediately become a possessory interest for the life of A, thereby preserving C's remainder even though it was still contingent. A classic case involving this sort
of structure was Perrin v. Blake (K.B. 1769) 1 Black W. 672, 672-73, 96 Eng. Rep. 392,
392-93, rev'd, (Exch. 1772) (unreported op.).
48. Nabob ofArcot v. E. India Co. (Ch. 1793) 4 Bro. C.C. 180, 194, 29 Eng. Rep. 841, 847
(holding that the East India Company, which had been granted the power of making peace
and war, thereby had power to make "treaties incidental to the peace and war so made").
This case was decided five years after the Constitution was ratified; I cite it only because
its principles are confirmatory of earlier law.
49. Marsh v. Smith (C.P. 1585) 1 Leo. 26, 27, 74 Eng. Rep. 24, 25 (stating that "in every
manor a court is requisite, for a court baron is incident to a manor"); Rex v. Stafferton (IKB.
1610) 1 Bulst. 54, 55, 80 Eng. Rep. 756, 757.
50. Rex v. Major (K.B. 1720) 1 Str. 385, 386, 93 Eng. Rep. 583, 584 (stating that "[a]
power of making by-laws is incident to every corporation"); Sutton's Hosp. Case (K.B. 1613)
10 Co. Rep. 23a, 30b, 77 Eng. Rep. 960, 970 (listing the incidents to corporations).
51. Lord Bruce's Case (KB. 1728) 2 Str. 819, 819-20, 93 Eng. Rep. 870, 870.
52. Butler v. Baker (K.B. 1591) 3 Co. Rep. 25a, 32b, 76 Eng. Rep. 684, 702 (holding, "for
inasmuch as the statute enables him by express words to devise the manor, by consequence
it enables him to devise the manor, with all incidents and appurtenances to it").
53. Thus, a royal pardon also restored "all the dependencies, penalties, and disabilities
incident unto" the offense. Cuddington v. Wilkins (K.B. 1615) Hob. 81, 82, 80 Eng. Rep.
231, 232; Portington'sCase (C.P. 1613) 10 Co. Rep. 35b, 39a, 77 Eng. Rep. 976, 982.
54. Supra n. 15 and accompanying text.
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1762 edition of Giles Jacob's popular 5 6 law dictionary followed
Coke's Institutes57 by defining an incident as "a Thing necessarily
depending upon, appertaining to, or following another that is
more worthy or principal."5 8 The definition in the Student's LawDictionary of 1740 stated that an incident "is any Thing that necessarily depends on, or appertains to another, which is principal
or more worthy."5 9 Four other dictionaries contained similar definitions. 60 The dictionaries all emphasized that an incident was
subordinate to or dependent on ("depending upon") the principal.
Accordingly, incidents could not be more important or more valuable (more "worthy") than their principals. 6 1 Incidents could not
comprise a subject matter independent of the principal. 62 A person with an incidental power could not use it to change the nature
of the thing granted 6 3-a rule buttressed by the requirements
56. On the popularity of various works, including Jacob's law dictionary, see Herbert A.
Johnson, Imported Eighteenth-Century Law Treatises in American Libraries 1700-1799
59-64 (U. of Tenn. Press 1978).
57. Coke, supra n. 2, at vol. 1, 151b.
58. Jacob, supra n. 2 (unpaginated). Jacob followed this definition with examples.
59. Student's Law-Dictionary,supra n. 2 (unpaginated).
60. Blount, supra n. 2 (unpaginated) ("a Thing appertaining to, or following another,
that is more worthy or principal"); Cowell, supra n. 2 (unpaginated) ("a Thing necessarily
depending upon another as more principal"); Cunningham, supra n. 2 (unpaginated) ("a
thing necessarily depending upon another as more principal"); Rastall, supra n. 2, at 404
("a Thing necessarily depending upon another as more principal").
61. Ex parte Duke ofAncaster (H.L. 1781) 2 Bro. P.C. 153, 159, 1 Eng. Rep. 855, 859
(distinguishing between cases in which the profit is the principal and a case in which a
service is the "greater" and the fee "but concomitant, and an incident"); Bevils Case (KB.
1583) 4 Co. Rep. 8a, 8b, 76 Eng. Rep. 862, 865 (distinguishing "seisin of superior service"
from "seisin of all inferior services which are incident to it"). Thus, the term "merely" was
often applied to incidents. Barnard v. Garnons (H.L. 1797) 7 Bro. P.C. 105, 115, 3 Eng.
Rep. 69, 75. So also was the word "only." Ibgrave v. Lee (C.P. 1556) 2 Dy. 116b, 117a, 73
Eng. Rep. 256, 257 ("only accessary [sic] or incident").
62. Atty. Gen. v. Rigby (Ch. 1732) 2 Eq. Ca. Abr. 201, 201, 22 Eng. Rep. 172, 172 (holding that a right to nominate beneficiaries of a rent-charge did not pass with the rent-charge
since the latter was "a Thing independant [sic] and collateral"to the rent); Hill v. Grange
(K-B. 1556) 1 P1. Com. 164, 168, 75 Eng. Rep. 253, 260 (reporting counsel as noting, and the
other side as admitting, that land is "another sort of a thing" from a messuage (house and
yard) and does not therefore pass as an incident to it; nor does another edifice pass as an
incident to conveyance of a house, for the same reason); Smith v. Stapleton (K.B. 1573) 2 P1.
Com. 426, 432, 75 Eng. Rep. 642, 650 (holding that if 0 leases to A for twenty-one years and
then immediately leases the reversion to B for twenty-one years, the rent is incident to the
reversion and not to the leasehold in possession "which is quite a different thing, and of a
different nature").
63. Lord Darcy v. Askwith (K-B. 1618) Hob. 234, 234, 80 Eng. Rep. 380, 380. In this
case, the question was whether an eighty-year lease that permitted coal mining carried
with it the power to use timber for mining purposes. The court held it did not.
For the grounds was agreed - . . that the grant of a thing did carry all things
included, without which the thing granted cannot be had. But this case was ad-
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that if one acted outside one's authority the action was void, and
64
that authority must be strictly construed.
Immutable rules of law sometimes mandated a relationship of
principal and incident. 65 Most of the common law of principals
and incidents, however, consisted of default rules of the hypothetical-bargain variety. In other words, they reflected the courts' inferences as to how, in a given case, these or similarly situated parties would have assigned their respective interests if they had bar66
gained about the matter.
Common law courts established the principal-and-incident
hypothetical-bargain default rules, as courts often do, through evijudged by the Court una voce [unanimously], against the defendant, for that
ground is to be understood of things incident and directly necessary. Thus, if I
give you the fish in my waters, you may fish with nets, but you may not cut the
banks to lay the water dry. If I grant or reserve woods, it implies a liberty to take
and carry them away ....
Now then if mines had not been granted by special
name, it had been waste to open a mine of new. For, it is generally true, that the
lessee hath no power to change the nature of the thing demised; he cannot turn
meadow into arable, nor stub a wood to make it pasture, nor dry up an antient [sic]
pool or piscary, nor suffer ground to be surrounded, nor decay the pale of park: for
then it ceaseth to be a park.., but he may better a thing in the same kind, as by
digging a meadow, to make a drain or sewer to carry away water.
Now upon the like reason, though it were no waste to open a mine in this case,
as it would have been if the demise had not been of mines by special name; yet it is
like a house new built; for maintenance whereof, the lessee can fell no timber, and
so much worse, as a new house betters and increaseth the inheritance, whereas
the making and digging of mines decays, and perhaps destroys the inheritance of
the mine. And therefore it is against reason to make one waste to maintain another.
Id. (citations omitted) (italics added).
64. Comyns, supra n. 2, at vol. 1, 458.
65. Mitchel v. Neale (Ch. 1755) 2 Ves. Sen. 679, 679, 28 Eng. Rep. 433, 433 (holding that
by common law one may do by attorney what one may do oneself, and therefore, one "need
not alledge [sic] a custom for it"). Incidents established by positive law were called "inseparable incidents." For example, the right to make a common recovery was inseparably incident to an estate tail, Coke, supra n. 2, at vol. 2, 224a, and fealty was inseparable from a
reversion, Magdalen College Case (K.B. 1615) 11 Co. Rep. 66b, 77a, 77 Eng. Rep. 1235,
1250 ("incident inseparable"). See Farnsworth, supra n. 2, at vol. 1, 37, 37 n. 5 (discussing
mandatory or immutable rules); see also Blackstone, supra n. 2, at vol. 1, **475-76 (listing
inseparable incidents of corporations).
66. See generally Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts:An
Economic Theory of Default Rules, 99 Yale L.J. 87 (1989) (discussing various kinds of default rules, including those that mimic the bargain parties would have reached); Adam J.
Hirsch, Default Rules in InheritanceLaw: A Problem in Search of Its Context, 73 Fordham
L. Rev. 1031, 1037-42 (2004) (discussing the use of hypothetical-bargain default rules in
contract and inheritance contexts); Robert G. Natelson, Modern Law of Deeds to Real Property 562-64 (Little, Brown & Co. 1992) (discussing the nature and occasion of hypothetical
bargains); Farnsworth, supra n. 2, at vol. 2, 485 (discussing whether the basis for default
rules should be the expectations of the parties or similarly situated "reasonable" parties).
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dence of custom 6 7 and of comparative efficiency. 68 Custom tends
to show how others in the society have resolved similar questions
and, in absence of proof to the contrary, suggests how the parties
before the court (or those similarly situated) would have resolved
the matter had they bargained over it. In many reported cases,
the common law referenced custom, 69 or prescription, 70 as the basis for a relationship of principal and incident. Blackstone cited
the legal status of by-laws and corporate seal as incidents of a corporation sole 7 ' to illustrate how common usage could create an incident even when necessity was slight.
A court constructing a hypothetical bargain may supplement
custom or relieve its absence 72 by resorting to evidence of comparative efficiency-which I prefer to think of as potential loss or gain
under alternative outcomes. Suppose allocation of an entitlement
to Xavier would only mildly inconvenience Yvonne, while allocation to Yvonne would result in severe loss to Xavier. That state of
affairs is evidence that the parties intended (or would have intended, if they thought about it) that Xavier have the entitlement,
67. See generally David Charny, Hypothetical Bargains: The Normative Structure of
ContractInterpretation,89 Mich. L. Rev. 1815, 1856-59 (1991) (discussing the use of custom in structuring hypothetical bargains); Restatement (Second) of Contracts § 219 (1981)
("Usage is habitual or customary practice."); id. at § 221 ("An agreement is supplemented
... by a reasonable usage.., if each party knows or has reason to know of the usage and
neither party knows or has reason to know that the other party has an intention inconsistent with the usage.").
68. Cf. Gregory Scott Crespi, Rethinking CorporateFiduciaryDuties: The Inefficiency of
the Shareholder Primacy Norm, 55 S.M.U. L. Rev. 141, 142 (2002) (assessing alternative
fiduciary default rules by the efficiency criterion).
69. E.g. Neal & Jackson's Case (C.P. 1595) 4 Co. Rep. 26b, 26b, 76 Eng. Rep. 938, 938
(containing reporter's comment that "[a] steward, as incident to his office, may, by the general custom of all manors, take a surrender out of court," citing Dudfeild v. Andrews (C.P.
1689) 1 Salk. 184, 184, 91 Eng. Rep. 168, 168); Swayne's Case (C.P. 1608) 8 Co. Rep. 63a,
64a, 77 Eng. Rep. 568, 570 (discussing incidents by custom in copyhold tenure); Heddy v.
Wheelhouse (K.B. 1597) Cro. Eliz. 558, 558, 78 Eng. Rep. 803, 803 (discussing customary
incidents of fairs); Howard v. Bartlet (C.P. 1614) Hob. 181, 181, 80 Eng. Rep. 328, 328
(holding that customary incidents adhere to a life estate). See also Ekins v. MacKlish (Ch.
1753) Amb. 184, 185-86, 27 Eng. Rep. 125, 125-26 (holding that a general factor who endorsed and sold a bill of exchange acted within the scope of implied authority because he
had complied with the custom of the industry).
70. E.g. Cowper v. Andrews (K.B. 1612) Hob. 39, 44, 80 Eng. Rep. 189, 194. See also
Heddy, Cro. Eliz. at 558, 78 Eng. Rep. at 803 (reporting argument of counsel).
71. Blackstone, supra n. 2, at vol. 1, *476 ("[Flor two of them, though they may be
practised, yet are very unnecessary to a corporation sole; viz. to have a corporate seal to
testify his sole assent, and to make statutes for the regulation of his own conduct.").
72. See e.g. Brown v. Nichols (KB. n.d.) Moo. K.B. 682, 682, 72 Eng. Rep. 837, 837
(stating, "[u]n conduit pur le porter de ewe al un meason voit passer ove le meason per le
parol appurtenant,& l'ownor poit vener en aut soile a ceo mender ... & ceo sans special
pscription [sic] ou special grant") (italics added).
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perhaps in exchange for compensation. The English courts characterized a situation in which allocation of an incident to Yvonne
would severely injure Xavier by saying the incident was necessary
to Xavier's enjoyment of the principal. 7 3 The relevant legal
maxim, as cited by Lord Coke and others, 74 was "quando aliquis
aliquid concedit, concedere videtur & id sine quo res ipsa esse non
potest"75 -"when someone grants something, he is seen to grant
also that without which the thing itself cannot be." That sounds
as if the incident must be indispensably necessary to the principal, but by the time of the Founding it also could mean that the
76
incident was reasonably necessary to enjoyment of the principal.
An incident was indispensably necessary if the principal was
valueless without the incident. A right to dig was incident to ownership of gold and silver ore, because otherwise the ownership of
the ore would be useless. 7 7 An incident was reasonably necessary
if, without the incident, enjoyment of the principal was greatly impaired. Blackstone again: "[D]eer in a real [sic] authorized park,
fishes in a pond, doves in a dove-house, etc., though in themselves
personal chattels, yet they are so annexed to and so necessary to
the well-being of the inheritance, that they shall accompany the
...71 The necessity need not be absolute,
land wherever it vests.
but as Chief Justice Marshall observed, an indirect connection,
without supporting custom, was not sufficient to create a princi79
pal-incident relationship.
73. Colonel Pitt's Case (K.B. 1734) Ridg. T.H. 91, 106, 27 Eng. Rep. 767, 773 (referring
to houses of parliament's power to evict members as an incident, because it was "necessary
to preserve" the houses' authority); Lord Cobham v. Brown (C.P. 1590) 1 Leo. 216, 218, 74
Eng. Rep. 198, 200 (stating that a steward was incident to a court even without prescription, because a steward was good for the court); Tyrringham's Case (KB. 1584) 4 Co. Rep.
36b, 37a, 76 Eng. Rep. 973, 978 (holding that a right of common was incident "as a thing
necessary and incident" to land); The King v. Richardson (K.B. 1757) 2 Keny. 85, 119, 96
Eng. Rep. 1115, 1127 (holding that a power to remove corporate officers is incidental to the
corporation because it was "as necessary for the well governing a corporation as an incidental power to make by-laws") (Mansfield, C.J.).
74. Viner, supra n. 2, at vol. 14, 346 (reporting the maxim under the heading of"incidents"); Kennycott v. Bogen (K.B. 1613) 2 Bulst. 250, 252, 80 Eng. Rep. 1098, 1100.
75. Saunders's Case (C.P. 1599) 5 Co. Rep. 12a, 12a, 77 Eng. Rep. 66, 67.
76. Natelson, Necessary and Proper,supra n. 2, at 273-84 (discussing the evolution of
the doctrine of incidental powers).
77. Case of Mines (Exch. 1568) 1 P1. Com. 310, 317, 75 Eng. Rep. 472, 483 (holding that
the ore of gold and silver is the King's and that "the power of digging is incident to the thing
itself").
78. Blackstone, supra n. 2, at vol. 2, **427-28.
79. Marshall, Defense, supra n. 2, at 168 (explaining the use of "convenience" in Coke,
supran. 2, at vol. 1, 56a: "neither a feigned convenience nor a strict necessity; but a reasonable convenience and a qualified necessity"); see also id. at 186 (stating that the constitu-
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Although common law principal-and-incident cases relying on
necessity usually did not reference custom, custom was not irrelevant. A finding of necessity took into account prevailing practices
when the owner of the principal would have been justified in assuming that the incident came with it. For example, in a society
in which the grantee of a term of years generally did not receive
the right to cut timber on the land, the fact that a coal mine required timber to operate and the grantee's operation of a coal mine
was impeded by the inability to cut timber on the land was not
sufficient to pass an incidental right to harvest wood.8 0
In summary, the requirements for the relationship of principal and incident in the Founding-era common law were:
1.
2.
3.
4.
Two interests that potentially could be treated together or
separately;
A perception that one of these-the principal-was the more
"worthy," i.e., more important, or more valuable of the two;
A perception that the interests had more in common than not;
and
Either
a. a custom that when the more valuable interest was transferred, the other accompanied it; or
b. the absence of a custom of separating the interest plus significantly greater loss to one party if the less valuable interest did not accompany the more valuable interest than
to the other party if the interests were conjoined plus a
finding that enjoyment of the more valuable interest
would be greatly impaired unless the less valuable interest accompanied it.
IV.
EARLY AMERICAN CONSTRUCTION OF THE NECESSARY AND
PROPER CLAUSE COMPLIED WITH THE COMMON LAw
DOCTRINE OF PRINCIPALS AND INCIDENTS
The First Congress's decision to authorize a Bank of the
United States, coupled with subsequent Supreme Court validation
tionality of Congress's choice of the most advantageous means "depends on their being the
natural, direct, and appropriate means, or the known and usual [i.e., customary] means, for
the execution of the given power"); id. at 187 (quoting language from McCulloch to the
effect that the means must not be a pretext for regulating outside the enumerated powers).
Marshall also explained some of the liberal language in McCulloch by arguing that the
means of executing an enumerated power was part of that power and not an incident, and
so was subject to a looser test. Id. at 171-73.
80. Lord Darcy v. Askwith (C.P. 1618) Hob. 234, 234-35, 80 Eng. Rep. 380, 380-81.
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111
in McCulloch v. Maryland,8 ' sometimes is cited as one of those
momentous events whereby the advocates of a broad and salutary
construction of the Necessary and Proper Clause won out over the
82
proponents of cramped and niggardly construction.
Actually, only minor theoretical differences separated the
parties to the bank debate. Most of the dispute in Congress arose
from an honest difference of opinion over how to apply the common law incidental powers doctrine to a particularly close case.
Bank advocates argued that chartering a national bank was incidental to several of the federal government's express powers, and
thereby justified by the Necessary and Proper Clause, because it
was customary for governments to execute those powers in that
manner.8 3 They also contended that power to incorporate a bank
was incidental to the federal government's express powers because it was necessary to their exercise.8 4 Bank opponents
claimed that chartering a financial institution was not incidental
because it was neither customary8 5 nor necessary.8 6 They further
81. McCulloch v. Md., 17 U.S. 316 (1819).
82. E.g. National Park Service, The U.S. Constitution:FirstBank of the United States,
http-//www.cr.nps.gov/history/online~books/butowsky2/constitution5.htm (accessed Oct. 25,
2006) (equating constitutional support for the Bank of the United States with "broad construction"); Houghton Mifflin Co., U.S. Supreme Court: Definition and Much More from
Answers.com, http://www.answers.com/topic/supreme-court-of-the-united-states (accessed
Oct. 25, 2006) (equating McCulloch with broad construction and with Roe v. Wade, of all
things!); MSN Encarta, Constitution of the United States, http://encarta.msn.com/
encyclopedia 761569008_3/Constitution of the UnitedStates.html (accessed Oct. 25,
2006) (online encyclopedia, stating that "Marshall used this power [of judicial review] in
1819, in McCulloch v. Maryland, to give [sic!] vast authority to Congress and the federal
government").
83. 2 Annals of Cong. 1959 (1789) (Rep. Fisher Ames); id. at 2007 (reporting Rep. John
Vining as stating that the power of incorporation was customary in governments similarly
circumstanced); Alexander Hamilton, Opinion on the Constitutionality of the National
Bank, in Bank History, supra n. 2, at 111-12; 2 Annals of Cong. at 1961 (Rep. Theodore
Sedgwick, stating, "It is universally agreed that wherever a power is delegated for express
purposes, all the known and usual means for the attainment of the objects expressed are
conceded also"); id. at 1962 ("known and usual means"); id. at 1974 (Rep. Elias Boudinot,
referring to "the common and usual necessary means"). One precedent tending to prove
custom was the Bank of England. Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 117-18 (U. Press of Kan. 1985).
84. 2 Annals of Cong. at 1958 (Rep. Fisher Ames, stating that the business of a national
bank could be done "badly" without incorporation, but that incorporation was indispensable
for doing it "well, safely, and extensively"); id. at 1975 (Rep. Elias Boudinot, saying, "He
had not heard any argument by which it was proved that [in absence of a bank] either
individuals, private banks, or foreigners could with safety and propriety be depended on as
the efficient and necessary means for so important a purpose"); id. at 1998-2001 (Rep.
Elbridge Gerry).
85. Id. at 1969 (Rep. James Jackson, distinguishing this proposal from foreign banks);
id. at 1985 (Rep. Michael Jennifer Stone) (expressing similar sentiments).
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argued that the power to incorporate was so significant that it was
of equal dignity with (as worthy as8 7 ), rather than subordinate to,
the enumerated powers.8 8
Although Chief Justice Marshall's ensuing opinion in McCulloch8 9 sometimes is cited to justify a broad construction of the Necessary and Proper Clause, 90 the McCulloch exposition of that
Clause kept it within the outer perimeter of the common law principals and incidents doctrine. During the ratification process, supporters of the Constitution had represented certain areas as
within the exclusive jurisdiction of states, 9 1 and like most other
Founders, Marshall opposed treating those fields as mere incidents of federal regulation: "It is not pretended [he wrote] that
this right of selection [of means] may be fraudulently used to the
destruction of the fair land marks of the constitution." 9 2 Marshall
believed that "Congress certainly may not, under the pretext of
collecting taxes, or of guaranteeing to each state a republican form
of government," meddle in such reserved areas as the law of descents. 9 3 For this reason, Marshall added, when exercising its incidental powers, Congress must not adopt remote or indirect
means: "Their constitutionality depends on their being the natural, direct, and appropriate means, or the known and usual [i.e.,
86. Id. at 2009 (Rep. James Madison). The parties disagreed over the degree of necessity required.
87. Supra nn. 57-61 and accompanying text.
88. 2 Annals of Cong. at 950 (reporting Rep. James Madison as calling incorporation "a
distinct, an independent and substantive prerogative"). The Annals reported Rep. William
Branch Giles as stating, ironically,
It appears to me, that the incidental authority is paramount to the principal, for
the right of creating the ability to lend [i.e., through the proposed bank], is greater
than that of borrowing ....
I should, therefore, rather conclude, that the right to
borrow, if there be a connexion at all, would be incidental to the right to grant
charters of incorporation, than the reverse ....
Id. at 1991.
89. McCulloch v. Md., 17 U.S. 316 (1819).
90. E.g. U.S. v. Darby, 312 U.S. 100, 124 (1941). See also infra nn. 147-49 and accompanying text.
91. Infra n. 125 and accompanying text.
92. Marshall, Defense, supra n. 2, at 173. Compare Marshall's view with the Court's
current "congruence and proportionality" test used in interpreting the Fourteenth Amendment. Infra n. 102 and accompanying text.
93. Marshall, Defense, supra n. 2, at 173. During the ratification process, federalists
frequently cited the law of descents as a reserved state power. E.g. Elliot's Debates, supra
n. 2, at vol. 3, 620 (reporting a speech of James Madison at the Virginia ratifying convention); id. at 40 (reporting remarks by Edmund Pendleton at the Virginia ratifying convention); The Federalist,supra n. 2, at No. 29, 141 (Alexander Hamilton); id. at No. 33, 160
(Alexander Hamilton).
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113
customary] means, for the execution of the given power."94 Stated
differently, the means Congress selected had to be "plainly
adapted" 9 5 to some enumerated power. If Congress went further,
"it would become the painful duty" of the Court "to say that such
an act was not the law of the land."96
V.
SIMILARITY OF MODERN LAW-OUTSIDE THE
COMMERCE POWER
The Founders'-Era doctrine of principals and incidents would
be fairly familiar to any modern lawyer practicing outside of the
distorted world of Commerce Power jurisprudence. The latest edition of Black's Law Dictionary defines "incident" in a manner very
like that of eighteenth-century dictionaries-as "[a] dependent,
subordinate, or consequential part (of something else)."9 7 The
modern Supreme Court's doctrine of principals and incidents is
closely akin to its eighteenth-century predecessor-in cases involving other parts of the Constitution. For example, the Court
has recognized exceptions to the Article III right to trial by jury
and the Fifth Amendment right to indictment by grand jury by
holding that those rights do not apply to the capture and detention
of enemy combatants, because capture and detention of enemy
combatants are "incidents" of war arising from well established
custom ("by universal agreement and practice"). 98 Moreover, in
upholding executive agreements that do not qualify as treaties,
the Court observed that the President's settlement of international claims can be an incident, by reason of necessity, to resolving a foreign policy dispute. 99 When construing Section 5 of the
Fourteenth Amendment 0 0-whose purpose mirrors that of the
Necessary and Proper Clause 1 0 1-the Court insists that there
must be a "proportionality or congruence between the means
adopted and the legitimate end to be achieved"1 0 2 so as to avoid
94. Marshall, Defense, supra n. 2, at 186.
95. McCulloch v. Md., 17 U.S. 316, 421 (1819).
96. Id. at 423.
97. Black's Law Dictionary 777 (Bryan A. Garner ed., 8th ed., West 2004).
98. Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (quotation marks omitted).
99. Dames & Moore v. Regan, 453 U.S. 654, 678, 688 (1981). The court also cited custom. Id. at 679-80.
100. U.S. Const. amend. XIV, § 5 ("The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.").
101. City ofBoerne v. Flores, 521 U.S. 507, 525 (1997); Katzenbach v. Morgan, 384 U.S.
641, 650 (1966).
102. City of Boerne, 521 U.S. at 533.
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"congressional intrusion into the States' traditional prerogatives
and general authority to regulate for the health and welfare of
their citizens." 10 3 The Court thereby prevents the incidental
power of Section 5 from swallowing up other subjects seen as independent or as "worthy."
In the hypothetical case at the beginning of this essay-involving the ranch owners and their over-ambitious manager,
Sam-the latter held a power of attorney that acknowledged a
grant of powers incidental to ranch management. By purchasing
other businesses, Sam strayed beyond the scope of incidental powers as that concept was recognized in the eighteenth century and
(outside commercial Necessary and Proper Clause cases) as incidental powers are recognized today. Neither buying an implements dealership nor acquiring retail stores is absolutely nor rea10 4
sonably necessary to operate a ranch; nor are they customary.
On the contrary, this Montanan might suggest they are a rather
odd way to run a ranch. And this is true even though, individually
or collectively, these businesses may have a "substantial effect" on
the ranch.
Indeed, the dealership and the retail stores certainly would be
seen as a different kind of business from a ranch. And unless the
ranch is extraordinarily large, the implement dealership and the
aggregate retail acquisitions are likely to be at least as "worthy"
as the ranch. Their size and value disqualifies them as incidents.
On the other hand, Sam had a good point when he said that a
ranch manager should not merely "keep his eyes on the manure
and never look outside the ranch." On occasion, effective management may entail making unusual acquisitions. For example, to
protect the integrity of the operation or for other reasons, the
manager may have to acquire an adjoining parcel of land. 0 5 Yet
acquisitions of other kinds are relatively unusual, so defending
them is correspondingly more difficult. 0 6
103. Id. at 534.
104. Telephone Interview with Wes Gibbs, Extension Agent, Mont. State U., and a former Montana rancher (Mar. 9, 2006).
105. Id. Examples include: (a) economic circumstances in the ranching business make
acquisition of additional land attractive; or (b) the rancher has been leasing the parcel
when suddenly it appears it might be sold for development.
106. The unusual nature of an acquisition would increase the need to show "necessity."
Supra nn. 72-80 and accompanying text.
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VI.
115
THE MODERN COMMERCE POWER TEST
A.
The Nature of the Test
We now turn to the modern era in Commerce Power jurisprudence to see what has happened to the Founders' design. The pivotal year is generally thought of as 1937, when the Supreme Court
decided National LaborRelations Board v. Jones & Laughlin Steel
07
Corp.
Commentators sometimes refer to post-1937 jurisprudence as
expanding the scope of the Commerce Clause. 08 However, the
Supreme Court has never enlarged the core meaning of "commerce" or the express power in the Commerce Clause, because the
Court still describes "commerce" as the buying and selling of goods
and certain closely related activities.' 0 9 Thus, the legal scope of
the express commerce power is no more and no less than it was
200 years ago.
The innovation of the modern era has been the change in the
incidental,implied part of the Commerce Power-the part implied
by the Commerce Clause, but memorialized textually in the Necessary and Proper Clause. When Congress regulates an interstate
railroad, it exercises its express power under the Commerce
Clause. 110 When it regulates some other activity because of a purported connection to interstate commerce, it relies on the inciden107. Natl. Lab. Rel. Bd. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). Justice
Kennedy called Jones & Laughlin, "[t]he case that seems to mark the Court's definitive
commitment to the practical conception of the commerce power." U.S. v. Lopez, 514 U.S.
549, 573 (1995) (Kennedy, J., concurring).
108. E.g. John E. Nowak & Ronald D. Rotunda, Constitutional Law 187-94 (7th ed.,
West 2004) (referring to expansive federal jurisdiction under the Commerce Clause without
discussing the Necessary and Proper Clause); Erwin Chemerinsky, Constitutional Law:
Principles and Policies 255 (2d ed., Aspen L. & Bus. 2002).
Taken together, [the later New Deal and post-New Deal cases Jones & Laughlin,
U.S v. Darby, and Wickard v. Filburn]expansively defined the scope of Congress's
commerce clause power....
* ' *The law of the commerce clause during this era could be simply stated:
Congress could regulate any activity if there was a substantial effect on interstate
commerce.
Id.
109. E.g. Wickard v. Filburn, 317 U.S. 111, 128 (1942) (identifying controlling the prices
at which commodities are bought and sold as regulating commerce); U.S. v. Darby, 312 U.S.
100, 113 (1941) (stating that "manufacture is not of itself interstate commerce").
110. See Gonzales v. Raich, 545 U.S. 1, 34-35, 125 S. Ct. 2195, 2215-16 (2005) (Scalia,
J., concurring) (pointing out that channels and instrumentalities of commerce are regulated under the Commerce Clause, while non-commercial activities that substantially affect commerce are regulated under the Necessary and Proper Clause).
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tal power doctrine emanating from the Commerce Clause, but
made visible in the text by the Necessary and Proper Clause."1
Through dicta in Gibbons v. Odgen, Chief Justice Marshall
suggested-he did not exactly say-that Congress might be able
to regulate some intrastate commercial activities that "affected"
interstate commerce. 1 12 In other words, under certain fact patterns, regulation of intrastate commerce could become incidental
to regulation of interstate commerce. This seems unremarkable,
but after 1937, the Supreme Court built upon Marshall's dicta to
hold that congressional regulation of any economic activity that
substantially affects interstate commerce is incidental to congressional regulation of interstate commerce." 3 Accordingly, the
Court has held that governance of manufacturing," 4 labor relations," 5 agriculture," 6 private land use and mining, 1 7 restau111. Id. at 5, 125 S. Ct. at 2199 (majority) (holding that "the power vested in Congress by
Article I, § 8, of the Constitution '[t]o make all Laws which shall be necessary and proper
for carrying into Execution' its authority to 'regulate Commerce with foreign Nations, and
among the several States' includes the power to prohibit the local cultivation and use of
marijuana in compliance with California law"). See also id. at 35, 125 S. Ct. at 2216
(Scalia, J., concurring); PrudentialIns. Co. v. Benjamin, 328 U.S. 408, 423 (1946) (stating
that the Commerce Clause is a plenary grant of power and that "[t]he only limitation it
places upon Congress' power is in respect to what constitutes commerce, including
whatever rightly may be found to affect it sufficiently to make Congressional regulation
necessary or appropriate"); Darby, 312 U.S. at 118 (citing McCulloch v. Md., 17 U.S. 316,
421 (1819), the seminal Necessary and Proper Clause case, and specifically the portion on
the incidental powers doctrine); Wickard, 317 U.S. at 124 (stating that the commerce power
is not confined to commerce among the states, but includes other activities that "so affect
interstate commerce" as to make regulation appropriate).
112. Gibbons v. Odgen, 22 U.S. 1, 194 (1824).
It is not intended to say that these words comprehend that commerce, which is
completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect
other States. Such a power would be inconvenient, and is certainly unnecessary.
Id.
113.
The power of Congress over interstate commerce is not confined to the regulation
of commerce among the states. It extends to those activities intrastate which so
affect interstate commerce or the exercise of the power of Congress over it as to
make regulation of them appropriate means to the attainment of a legitimate end,
the exercise of the granted power of Congress to regulate interstate commerce.
Darby, 312 U.S. at 118. See also Wickard, 317 U.S. at 125 (holding that Congress may
regulate activities that substantially affect interstate commerce); U.S. v. Lopez, 514 U.S.
549, 560 (1995) (reaffirming that view, but holding that such activities generally must be
economic in nature).
114. Darby, 312 U.S. at 113, 123.
115. Id. at 115.
116. Wickard, 317 U.S. at 128.
117. Hodel v. Va. Surface Mining & Reclamation Assn., 452 U.S. 264, 280-81 (1981).
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rants, 118 medical marijuana, 11 9 and other activities 120 are all incidental to governance of interstate commerce because they are economic activities "substantially affecting" interstate commerce, and
therefore embraced by the Necessary and Proper Clause.
B.
1.
Problems with the "SubstantialEffects" Test
Infidelity to Original Meaning
Obviously, this broad approach is widely at variance with the
common law doctrine of principals and incidents that the Necessary and Proper Clause was supposed to represent.1 2 1 Governing
such activities as loan sharking 122 and strip mining, 1 23 as Congress now does, is hardly a "natural" or "direct" way of regulating
interstate commerce. It is, rather, an indication that Congress
has seized what is very nearly a general police power. This occurred, in part, because the Supreme Court acquiesced in violations of two central rules of the principals and incidents doctrine:
first, that an agent with incidental authority may not employ it to
alter the nature of the principal power; and, second, that inciden124
tal authority must be strictly construed.
This judicial acquiescence to congressional overreaching is
squarely at odds with repeated public representations of constitutional meaning made at the Founding. During the ratification
process, federalist spokesmen listed all sorts of activities the new
federal government would not be able to regulate within state
boundaries: local government, real property, the law of testate and
intestate succession, personal property outside of commerce, agriculture and other business enterprises, domestic relations, most
civil disputes, most criminal matters, religion, education, and social services. 12 5 Obviously, activities in all these fields "substan118. Katzenbach v. McClung, 379 U.S. 294, 304 (1964).
119. Gonzales v. Raich, 545 U.S. 1, 22, 125 S. Ct. 2195, 2209 (2005).
120. E.g. Perez v. U.S., 402 U.S. 146, 154-55 (1971) (regulating local loan sharking on
the theory that crime has wider economic effects that substantially affect interstate commerce).
121. Perhaps in recognition of this, the Court has at times paraphrased the Clause so
loosely as to be essentially a re-writing. See e.g. PrudentialIns. Co. v.Benjamin, 328 U.S.
408, 423 (1946) (paraphrasing "necessary and proper" as "necessary or appropriate").
122. Perez, 402 U.S. at 154-55.
123. Hodel v. Ind., 452 U.S. 314,324 (1981) (sustaining federal surface mining law based
on the substantial effects test).
124. Supra nn. 63-64 and accompanying text.
125. Robert G. Natelson, The Enumerated Powers of States, 3 Nev. L.J. 469, 481-88
(2003).
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tially affect" interstate commerce. The Founders themselves thoroughly understood that. 126 They nevertheless thought of those activities-as probably most people today would think of them-as
conceptually independent from, as "worthy" as, commerce.
2. Other JurisprudentialShortcomings
In addition to its lack of fidelity to original meaning, the "substantial effects" standard suffers from a number of other jurisprudential shortcomings. As Justice Thomas pointed out, the substantial effects test is textually discordant, for it yields a commerce power broad enough to turn several other enumerated
powers into surplus. 127 Justice Souter added that the rule requires the Court to engage in the "categorical formalism" of classifying activities according to whether they are "economic."' 28 The
Court also must categorize an activity as commercial or non-commercial and either as substantially affecting or not substantially
affecting interstate commerce.
The exact meaning of "substantial" has never been determined, and remains uncertain. And moreover, as Justice Thomas
notes, the substantial effects test is anomalous; it is applied to no
other congressional power.' 29 It bears an odor of illegitimacy unsuited to such an important part of constitutional law, because it
arose not from proper constitutional amendment nor, apparently,
from independent judicial reasoning, but out of severe political
pressures applied to the Court during the late 1930s and early
1940s.130 Arguably, the test is seldom criticized only because of
126. The tight relationship between interstate and foreign commerce (to be regulated by
Congress) and most other activities (to be regulated by the states) was not only understood,
but trumpeted at the time of ratification. Id. at 490-92. See also N.Y. Indep. J., Jul. 9,
1788, in The Documentary History of the Ratification of the Constitution vol. 21, 1307-08
(John P. Kaminski et al. eds., Wisc. Hist. Soc. Press 2005) (speaking of the benefits to
farmers, manufacturers, merchants, and morals of a wider scope for commerce); N.Y. Daily
Advertiser, Aug. 2, 1788, in The Documentary History of the Ratification of the Constitution, supra, at vol. 21, 1635 (reporting hoped-for benefits to bakers of a wider field for commerce).
127. U.S. v. Lopez, 514 U.S. 549, 588-89 (1995) (Thomas, J., concurring).
128. U.S. v. Morrison, 529 U.S. 598, 644 (2000) (Souter, J., dissenting) (claiming that the
Court was engaged in "categorical formalism").
129. Lopez, 514 U.S. at 589 (Thomas, J., concurring).
130. The political pressure arose from the Great Depression, the New Deal, and President Franklin Roosevelt's Court-packing plan.
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119
the perceived difficulties of getting the congressional horse back
into the constitutional barn.' 3 '
3.
PracticalShortcomings
Many have argued that the substantial effects test at least
has the merit of realism-that it represents a sound approach to
the needs of the highly interdependent modern economy. 13 2 Yet
even this defense is questionable, for as applied the test is actually
dysfunctional.1 3 3 I say this for three reasons. First, for constitutional purposes, the substantial effects test disconnects congressional legislation from any real showing of need. Second, by disregarding the "pretext limitation" of McCulloch, the test encourages
regulation for reasons having nothing to do with interstate commerce. Third, the associated "aggregation principle" contains positive incentives for Congress to over-regulate. I shall consider
each of these reasons in turn.
a.
Lack of Any Connection between Legislation and Need
A standard more faithful to the Constitution would require,
when Congress claims that regulating a discrete non-commercial
activity is incidental to regulating interstate commerce, that Congress justify its claim. This could be done by showing either
Founding-Era custom or modern necessity. In many cases, the
government will not be able to show Founding-Era custom because the prevailing practice during the eighteenth century seems
to have been to use commercial regulations to affect other activities rather than to regulate other activities to affect commerce. 13 4
131. The fact that so many federal programs depend for their "legitimacy" on the substantial effects test has created both great reliance on that test and powerful interest
groups in support of it.
132. Morrison, 529 U.S. at 644 (Souter, J., dissenting) ("If we now ask why the formalistic economic/noneconomic distinction might matter today, after its rejection in Wickard, the
answer is not that the majority fails to see causal connections in an integrated economic
world."). See also Lopez, 514 U.S. at 574 (Kennedy, J., concurring):
That fundamental restraint on our power forecloses us from reverting to an understanding of commerce that would serve only an 18th-century economy .... Congress can regulate in the commercial sphere on the assumption that we have a
single market and a unified purpose to build a stable national economy.
133. Infra nn. 134-57 and accompanying text.
134. See e.g. Thomas Whately ("George Grenville"), The Regulations Lately Made Concerning the Colonies and the Taxes Imposed upon Them, Considered (J. Wilkie 1765) (a
summary of and apologia for British commercial policy); Blackstone, supra n. 2, at vol. 4,
**419-20 (discussing the encouragement of industry through various regulations of commerce); The Federalist,supra n. 2, at No. 10, 44--45 (James Madison) (referring to measures
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Indeed, the drafters and ratifiers of the Constitution consciously
adopted an approach that separated power over inter-jurisdic13 5
tional commerce from power over most other activities.
If the federal government can point to no relevant custom rendering regulation of a non-commercial activity "incident" to its
principal (express) commerce power, then according to the constitutional design, the government must demonstrate that its desired plan of regulation is an absolute or reasonable necessity for
exercise of the principal power. Thus, if Congress sought to govern labor relations, it would have to show that regulation of interstate commerce would be rendered nugatory or difficult without
an accompanying regulation of labor. The Supreme Court made
some effort to address the issue of necessity in Jones & Laughlin.136 The majority opinion contended that federal control of labor relations for a very large business was desirable to prevent
serious disruptions of commerce. 13 7 After Jones & Laughlin, the
Court never made the effort again. Instead, it shifted to those who
challenge laws the burden of proving the absence of any possible
incidence, 138 and transmuted incidence into the "substantial effects" test. 13 9 Of course, the most the "substantial effects" test really tells us is that regulation of a non-commercial activity might
be (not is) helpful (not necessary) for regulating commerce. It tells
us nothing of custom, almost nothing about necessity, and, therefore, almost nothing about incidence.
encouraging local manufactures by restricting commerce with foreign nations); Elliot's Debates, supra n. 2, at vol. 2, 57-60 (reporting speech by Thomas Dawes at the Massachusetts
ratifying convention, discussing how under the Constitution, federal commercial regulations could be employed to promote American agriculture, shipping, manufactures, and
production of raw materials). See also Dickinson, supra n. 2, at 8-9 n. * (referencing the
statutes 15 Car. II, c. 7, a commercial regulation adopted in part to encourage manufactures and the woollen business, and 6 Geo. II, c. 13, a commercial regulation adopted to
promote sugar production). Britain did prohibit the manufacture of iron and steel in the
colonies, but this appears to have been an isolated instance, and apparently was imposed to
protect the British iron and steel industries, not to regulate commerce. Id.
135. Natelson, Commerce, supra n. 2, at 843-44.
136. Natl. Lab. Rel. Bd. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 41 (1937).
137. Id. (upholding labor legislation, and stating that in view of the size of the company
involved "the stoppage of those operations by industrial strife would have a most serious
effect upon interstate commerce. In view of respondent's far-flung activities, it is idle to
say that the effect would be indirect or remote. It is obvious that it would be immediate
and might be catastrophic.").
138. See e.g. Heart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241, 258 (1964) (holding that a
law is constitutional if it "might have" a substantial and harmful effect on interstate commerce and that Congress need only have a "rational basis" for a finding of effect).
139. E.g. Wickard v. Filburn, 317 U.S. 111, 125, 128-29 (1942).
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It is a historical irony that the Court made this change when
it did. The Court abandoned the requirement that the government show necessity, just when necessity should have been easiest to prove-during the period of the Great Depression and the
imminence of Global War.
b.
Lack of Connection between Means and Purported
Purpose
The New Deal Supreme Court did more than abandon the requirement that when Congress legislates under the Necessary
and Proper Clause it rely on either custom or necessity. The
Court also gutted McCulloch's "pretext" limitation.
McCulloch had laid down, in addition to the objective rule
that means be "plainly adapted" to ends, 140 a requirement of subjective congressional good faith. As Chief Justice Marshall stated,
Congress was barred from resorting to the Necessary and Proper
Clause to regulate activities outside its express enumerated powers unless Congress actually intended to serve an enumerated
purpose. In the tradition of Coke, 141 Marshall promised that the
Court would invalidate any legislation justified merely by a "pretext" of serving enumerated ends, but actually adopted for an
42
unenumerated purpose.'
United States v. Darby14 3 sustained federal legislation apparently designed, at least in part, to placate the organized labor
component of the New Deal coalition. The law had two facets.
First, it prohibited interstate trade in goods made by employees
140. McCulloch v. Md., 17 U.S. 316, 412 (1819).
141. In one of Coke's most famous reported cases, the "Case of Monopolies" (K.B. 1602)
11 Co. Rep. 84b, 88b, 77 ER 1260, 1266, Coke had noted the elaborate pretext for the monopoly, and added: "Privilegiaquae re vera sunt in praejudiciumreipublicae, magis tamen
speciosa habent frontispicia, et boni publici praetextum, quam bonae et legales concessiones, sed praetextulicili non debet admitti illicitum."-"Privileges that really are prejudicial to the state frequently have more handsome outside appearances and a pretext as being
for the general good than if they were good and legal grants; but an impermissible thing
should not be permitted on a permissible pretext." (emphasis added).
142. McCulloch, 17 U.S. at 358-59 (stating that'Congress may not, under the Necessary
and Proper Clause, recite an express power as a mere "pretext" for regulating something
else). Marshall's colleague and close collaborator on the Court, Joseph Story, paraphrased
this by summarizing the Necessary and Proper Clause as having "a sense at once admonitory, and directory. It requires, that the means should be, bond fide [in good faith], appropriate to the end." Story, supra n. 24, at § 1248.
143. U.S. v. Darby, 312 U.S. 100 (1941).
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whose working conditions violated the Fair Labor Standards Act
144
of 1938. Second, it prohibited production of such goods.
The Court's validation of the interstate trade ban entailed no
real Commerce Power difficulties, since Congress's motivation is
irrelevant when it is regulating interstate commerce. 145 The evidence from the Founding is that governments commonly did, and
the federal government was expected to, use commercial regula146
tions to further non-commercial, including protectionist, ends.
This part of Darby was well within the American constitutional
tradition.
The production ban, though, was not a regulation of commerce per se, and so could be upheld only under the Necessary
and Proper Clause. 147 However, the Darby Court made no serious
argument that production controls were necessary for the commercial ban to work. 148 The Court's justification was that production substantially affected commerce. 149 Moreover, no showing of
necessity was possible at the time the law was adopted, since a
commercial ban without a production ban had not been attempted. Manufacturers affected by the new law-whose behavior had been entirely legal to date-were denied the courtesy of a
trial period.
The fact that Congress could not have known whether the
production ban was necessary to support the trade ban feeds the
suspicion that Congress's action was motivated by factors other
144. Id. at 109-10.
145. Cf Champion v. Ames, 188 U.S. 321, 356 (1903). Hammer v. Dagenhart,247 U.S.
251, 276 (1918), standing for the opposite proposition, was overruled by Darby.
147. The Court does not say so explicitly, but the point was clear.
148. The Court stated,
Congress was not unaware that most manufacturing businesses shipping their
product in interstate commerce make it in their shops without reference to its ultimate destination and then after manufacture select some of it for shipment interstate and some intrastate according to the daily demands of their business, and
that it would be practically impossible, without disrupting manufacturing businesses, to restrict the prohibited kind of production to the particular pieces of lumber, cloth, furniture or the like which later move in interstate rather than intrastate commerce.
Darby, 312 U.S. at 117-18. Observe that this statement mentions only possible disruption
of companies' manufacturing businesses, a disruption companies might have preferred to
accept over direct regulation of their manufacturing processes. The Court's statement says
nothing about the needs of regulating interstate commerce.
149. Id. at 119 ("But it does not follow that Congress may not by appropriate legislation
regulate intrastate activities where they have a substantial effect on interstate commerce."). Query whether the double negative was employed with full understanding of its
weaseling effect.
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than regulation of commerce: that Congress used the Necessary
and Proper Clause as a "pretext" for accomplishing goals that really had nothing to do with commerce. The Court's abandonment
of the McCulloch good faith standard sent a standing invitation to
Congress to pass laws purportedly based on the Commerce Power
but that (a) do not regulate commerce and (b) are adopted for noncommercial purposes. Today, of course, statutes in this category
are routinely enacted and routinely sustained, so long as either
Congress or the courts insert ritualistic references to "commerce."
By way of illustration, consider Hodel v. Indiana.'50 There,
the Court sustained against a Commerce Clause challenge a statute that imposed reclamation requirements on surface mines located on "prime farmland." The principal purpose of the statute
apparently was to restore previously productive crop land to agriculture.151 Congress may have had some environmental and
health concerns as well, 15 2 but it was clear the statute was neither
a regulation of interstate commerce nor incidental thereto.
The Court saved the statute from invalidation with the following explanation: "Congress adopted the Surface Mining Act in order to ensure that production of coal for interstatecommerce would
not be at the expense of agriculture, the environment, or public
health and safety, injury to any of which interests would have deleterious effects on interstate commerce."153 In other words, the
real targets of the law were agriculture, the environment, and
public health and safety, but the Court tagged on references to
commerce to serve-in Chief Justice Marshall's word-congressional "pretexts."1 54 One can see how the statute could have been
"validated" by use of other enumerated powers in a similarly imaginative way. For example, the Court might have said, "Congress adopted the Surface Mining Act in order to ensure that production of coal used in part to heat army installationswould not be
at the expense of agriculture, the environment, or public health
and safety, injury to any of which interests would have deleterious
effects on military preparedness." 55 Alternatively: "Congress
150. Hodel v. Ind., 452 U.S. 314 (1981).
151. Id. at 324, 326.
152. Id. at 327.
153. Id. at 329 (emphasis added).
155. Cf U.S. Const. art. I, § 8, cl.12 (Congress shall have power "ftlo raise and support
Armies."). The Supreme Court rejected an analogous flexing of executive muscle in
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (overturning the President's
seizure of steel mills on ground of military necessity during time of war).
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adopted the Surface Mining Act in order to ensure that production
of coal used in part to heat scientific buildings would not be at the
expense of agriculture, the environment, or public health and
safety, injury to any of which interests would have deleterious ef56
fects on the annual number of patents and copyrights issued."'
Any "test" of constitutionality that can be manipulated so cynically is, of course, no test at all; it is, rather, an invitation to Congress to exceed its powers and then lie about it.
c.
The Aggregation Principle
The year after Darby, the Court invented the aggregation
principle of Wickard v. Filburn.15 7 This "principle" (I'm not sure
the word is accurate) is that if a statute regulates non-commercial
conduct without substantial effect on interstate commerce, the
regulation is sustained if other activities governed by the statute,
when added to the conduct at issue, collectively have a substantial
effect on interstate commerce. The incentive thus erected is plain.
The aggregation principle encourages lawmakers concerned about
small problems with insubstantial effects on commerce to legislate
on other matters as well so as to reach the constitutional threshold. ' 5- For example, if public hysteria arises over an obscure and
rarely used rule of punitive damages, Congress can constitutionally insulate its ban on the rarely used rule by drafting a statute
that needlessly alters many other damage rules. If a would-be
assassin shoots a public official with a kind of rifle so rare its production has no substantial effect on interstate commerce, Congress can override state decisions to permit production of that rifle
only by extending the prohibition to other firearms that have not
been used that way. To continue in the same spirit, the less Con156. Cf U.S. Const. art. I, § 8, cl. 8 (Congress shall have power "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors
the exclusive Right to their respective Writings and Discoveries.").
157. Wickard v. Filburn, 317 U.S.111, 127-28 (1942) ("That appellee's own contribution
to the demand for wheat may be trivial by itself is not enough to remove him from the scope
of federal regulation where, as here, his contribution, taken together with that of many
others similarly situated, is far from trivial."). Query whether "far from trivial" is the same
as "substantial."
158. Gonzales v. Raich, 545 U.S. 1, 43, 125 S. Ct. 2195, 2221 (2005) (O'Connor, J., dissenting) (stating that the rule based on the aggregation principle "gives Congress a perverse incentive to legislate broadly pursuant to the Commerce Clause-nestling questionable assertions of its authority into comprehensive regulatory schemes-rather than with
precision"). See also id. at 46-47, 125 S. Ct. at 2223 (stating that the Court thereby "invites
increased federal regulation of local activity even if, as it suggests, Congress would not
enact a new interstate scheme exclusively for the sake of reaching intrastate activity").
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TEMPERING THE COMMERCE POWER,
125
gress's real target affects interstate commerce, the stronger the
motivation for Congress to spray-shoot every other object in view.
Wickard encourages Congress to be most aggressive when the
problems provoking its response are least consequential.
VII.
A RETURN TO BASIC "PRINCIPALS-AND INCIDENTS
159
Many have argued, and Justice Thomas has suggested,
that a simple return to pre-1937 commerce power jurisprudence is
unsatisfactory, because social change may have rendered some of
that jurisprudence inappropriate for modern economic-or constitutional-conditions. Hence, Justice Thomas has called for Supreme Court reconsideration of the Commerce Power in an effort
to arrive at a formulation more consistent with the structure of
the constitutional text and the views of the Founders, but not inconsistent with all of the Court's post-1937 Commerce Power jurisprudence.
My suggestion is that the standard best meeting these criteria is the Founders' own doctrine of principals and incidents.
I say this for several reasons other than mere [sic] fidelity to
original meaning. Certainly, the doctrine of principals and incidents may moderate the evils of the "categorical formalism" Justice Souter has decried.' 6 0 Legal categories never can be abandoned consistently with the rule of law, since, after all, law depends for its meaning on categories. However, we can avoid
arbitrary categories, and arbitrariness is really what Justice Souter argues against. Categories in the doctrine of principals and
incidents generally are not arbitrary because they derive from factual and historical circumstances.
When faced with a claim that a statute is outside the Commerce Power, a court adopting the principals and incidents doctrine initially would inquire whether the activity Congress is attempting to govern is "interstate commerce." If it is, then the law
is within the express Commerce Power and that part of the case is
at an end. If Congress is regulating some other activity, the Court
must determine if the law is authorized in the Necessary and
Proper Clause.
159. U.S. v.Lopez, 514 U.S. 549, 585 (1995) (Thomas, J., concurring) ("In an appropriate
case, I believe that we must further reconsider our 'substantial effects' test with an eye
toward constructing a standard that reflects the text and history of the Commerce Clause
without totally rejecting our more recent Commerce Clause jurisprudence.").
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Vol. 68
If the government (not the challenger) can demonstrate a historic custom of regulating this sort of activity as a part of controlling inter-jurisdictional commerce, then the requirements of the
Necessary and Proper Clause are satisfied. If there is no applicable custom, then the government could still justify the regulation
by showing it is absolutely or reasonably necessary (not merely
convenient) for the regulation of interstate commerce. This requirement is not unduly burdensome, especially in the context of
federal legislation, when the stakes are so high. Among those who
believe the federal regulatory state is essential to modern conditions, there must be some who are willing and able to prove it
empirically. Given the interests involved, perhaps the level of necessity to be proved should be similar to that applied to actors in
16 1
the field of private fiduciary relations.
By way of illustration, suppose Congress has banned interstate traffic in a particular drug. The drug is highly addictive, so
there is a strong demand for it, and once manufactured, it is easily
concealed and transported. Either a trial period or historical experience with similar items demonstrates that a ban on manufacture or cultivation of the drug would be necessary to render the
ban on commerce effective. 1 62 In that case, the test of necessity
would be met, and the production ban valid. Similarly, it may be
impractical for Congress to exercise constitutional oversight over
interstate commerce over the Internet unless some sites are closed
down. A flat ban on such sites would then be incidental to regulation of interstate commerce over the Internet.
Before 1937, the Supreme Court generally barred Congress
from regulating any activity the Court classified as "production."1 6 3 Under the principals and incidents doctrine, however, if
changes have created a situation in which governance of interstate commerce would be seriously impaired unless Congress controls some aspect of production, then that fact can be cited to show
that regulation of production is incidental to regulation of commerce. Further, by putting the burden of proof on the government, the doctrine of principals and incidents requires Congress
161. See Natelson, Public Trust, supra n. 2 (describing in detail the Founders' commitment to fiduciary government); Natelson, Necessary and Proper,supra n. 2, at 284-85 (inferring that 'proper" in the Necessary and Proper Clause meant in accordance with fiduciary obligations).
162. Raich, 545 U.S. at 35, 125 S. Ct. at 2216 (2005) (Scalia, J., concurring) (pointing out
in an illegal drug case that regulation of non-commercial activities is within the Necessary
and Proper Clause if "necessary to make a regulation of interstate commerce effective").
163. E.g. Carter v.Carter Coal Co., 298 U.S. 238, 299 (1936).
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to have a legitimate basis for regulating an activity. Admittedly,
the principals and incidents doctrine may not be symmetrically
responsive. This is because if changes have rendered congressional regulation of an activity no longer necessary, then arguably
the regulation still is constitutional, because during the period of
164
necessity it has become customary.
Although the principals and incidents doctrine may also tilt
toward over-regulation, it does so less markedly than the Court's
current approach. One result from its adoption (or re-adoption)
may be to encourage Congress to proceed more cautiously, and focus more on genuine social problems and less on inconsequential
ones. This would be a good thing, in my view, for if we have
learned anything about political economy since the New Deal, it is
that the increasing complexity of society, rather than justifying
centralized administration, often makes centralized administration impractical. In today's world, even the simplest bureaucratic
blunder can do immediate and immense damage.
VIII.
CONCLUSION
The Constitution grants Congress two sorts of powers pertaining to interstate commerce. The Constitution grants an express power to govern the traditional "law merchant"-the regulation of buying and selling, and certain related fields, such as mercantile finance, commercial paper, currency, transportation, and
insurance. It grants an implied, incidental power to regulate
other activities. The latter grant is implied from the Commerce
Clause, and communicated in words by the Necessary and Proper
Clause. However, the Necessary and Proper Clause does not substantively expand the incidental authority given by the Commerce
Clause.
The intended scope of Congress's incidental powers can be deduced from the Founders' common law of principals and incidents.
An incidental power must be either customary or absolutely or
reasonably necessary to the execution of the principal power. One
executing the incidental power may not use it to expand one's express authority, nor for any purpose other than execution of express authority. These limitations on incidental powers memori164. This, of course, depends on the unanswered question of whether the relevant custom is a contemporary standard or a Founding-Era one. As to the initial test of constitutionality, the standard should be that of the Founding-Era. After a prolonged period of
constitutional application, though, one may argue that the interest in legal and social stability is promoted by adopting a contemporary standard.
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alized in the Necessary and Proper Clause were honored until
about 1937. They assured that federal powers were, as Madison
165
famously wrote, "few and defined."
After 1937, the Supreme Court altered the meaning of the
Necessary and Proper Clause to allow Congress to regulate any
economic activity substantially affecting interstate commerce.
Various other limitations associated with the doctrine of principals and incidents were discarded. The result is a Commerce
Power jurisprudence that is not only unfaithful to the original
meaning and structure of the text, but that suffers from significant practical defects.
I have proposed re-adoption of the doctrine of principals and
incidents in interpreting the Necessary and Proper Clause because that doctrine is more faithful to the original understanding
and because it is more responsive to social and economic needs. It
would preserve that portion of post-1937 Commerce Power jurisprudence justified by social and economic change, while moderating Congress's current incentives for disingenuous behavior and
over-regulation.
165. The Federalist,supra n. 2, at No. 45, 241 (James Madison).
34

Tempering the Commerce Power - The Scholarly Forum @ Montana

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